Professional Responsibility of Lawyers

Is it a violation of the first amendment for the American Bar Association to impose a nationwide speech code for lawyers? Professor Eugene Volokh of the UCLA School of Law discusses the newly proposed Rule 8.4(g) of the ABA's Model Rules of Professional Conduct, a set of anti-discrimination guidelines for lawyers that would bind lawyers to adhere to particular speech codes in the states that have adopted it.

This panel, Government Ethics & Corruption, was held on February 4, 2017, at the 2017 Florida Chapters Conference at Disney's BoardWalk Inn at the Walt Disney World® Resort in Lake Buena Vista, Florida.

Government Ethics and Corruption
10:30 a.m. – 12:00 Noon

Mr. Nick Cox, Florida Statewide Prosecutor

Renee Flaherty, Institute for Justice

Todd Graves, Graves Garrett

Prof. Matthew Stephenson, Professor of Law, Harvard Law School

Moderator: Judge Susan Rothstein-Youakim, Florida Second District Court of Appeal

Given the size and scope of the federal government, many agency regulations, guidance documents, and cases are left in various stages of development as the executive branch changes hands. The first episode of our Legal Options for the New Administration Teleforum Series focused on pending litigation in the executive branch. Is the administration free to dismiss or stop prosecuting cases which do not align with its policies? Can the administration stop defending actions in court? What are the constraints? What has been the past practice? These and other questions were discussed by our experts.

Professor Eugene Volokh of the UCLA School of Law joined us Monday, December 12 to discuss the ABA’s new Rule 8.4 on professional misconduct. The Rule states that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The ABA goes further in Comments, stating that “Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others,” and that the Rule applies in any situation, even social, that is “connected to the practice of law.” Professor Volokh discussed the First Amendment implications and reaction to the new rule.

Featuring:

Professor Eugene Volokh, ,Gary T. Schwartz Professor of Law, UCLA School of Law

“Those who won our independence," Justice Brandeis wrote nearly a century ago, “eschewed silence coerced by law – the argument of force in its worst form." They believed that “the fitting remedy for evil counsels is good ones." Holding that belief, the Founding Generation added an amendment to the Constitution that expressly protects the freedom of speech. Today, however, public officials and private citizens facing what they believe to be “evil counsels" have sometimes responded not by offering good counsel but by invoking judicial processes. They use “the argument of force in its worst form" to silence opinions and speech that they disapprove of.

Recent examples of this phenomenon include District Attorneys in Texas and Wisconsin who investigated and charged a sitting Governor, the whistleblower who exposed the practices of Planned Parenthood, and those whose political views diverged from those of the District Attorney. In two of those cases, investigators broke into homes and seized computers and documents. Significantly, in each case, the charges were dropped, although not without great angst and effort from the targeted.

Mark Steyn has asserted that the process is, itself, the punishment. Steyn has been sued by a Penn State climatologist who famously claims that he was defamed when his writings were subjected to ridicule. Four years after the suit was filed, it is still in its preliminary stages.

Most recently, a coterie of Attorneys General, aided by some senators, have declared their intention to stifle dissent on the subject of climate change. The Attorneys General of Massachusetts and the Virgin Islands sent subpoenas for documents to Exxon and a number of think tanks grounding their action on the contention that the dissenters are guilty of fraud.

Are these actions appropriate uses of the judicial process?

What, if anything, can be done to curtail the use of judicial processes to target speech? Are measures like Anti-SLAPP (Strategic Lawsuits against Public Participation) laws an appropriate response? Are they constitutional? What about a federal anti-SLAPP law?

It is noteworthy that the worst abuses have taken place in state courts. Should Congress allow removal to federal court when a defendant makes a plausible case that the relief sought would violate rights under the First Amendment?